London Health and Safety Group

“Key Risks in Fire Safety for companies and individuals in light

of recent casesKizzy Augustin, Pinsent Masons LLP

10 December 2015

LEGAL UPDATE - Overview

• Key new risks in Fire Safety– Who is the “responsible person”?– Imprisonment for individuals– Corporate Manslaughter and Corporate Homicide Act 2007– Fire Enforcement trends (LFB v Regional Fire Authorities)– Increased fines / 2016 Sentencing Guidelines

• Fire Safety Case Law update / penalties

• How to avoid or limit liability?

Who is the Responsible Person?

• Definition

• Problem - wider range of persons being identified as responsible

• Who has personal liability under RRO 2005?– Usually the Responsible Person, but.....

Individual H&S / Fire Safety duties

HSWA 1974 RRO 2005

Duty of employees

Art 23

Section 37

Liability of directors and senior managers

Section 7

Duty of employees

Art 32(8)

Liability of directors and senior managers

Individual H&S duties

• Consent - have knowledge and endorse/direct it

• Connivance – have knowledge and ignore it

• Neglect – should have been aware (even if they are not) and taken action

Imprisonment for Individuals / Penalties

• Fines / penalties– Art 23 (offence is Art 32(2)(a)) -

• Magistrates – unlimited fine (since March 2015)• Crown – unlimited fine

– Art 32 (1) &(8) - • Magistrates – unlimited fine (since March 2015)• Crown – unlimited fine and/or• Imprisonment – up to 2 years

Section 85 LASPO• Unlimited fines in the Magistrates’ Courts for those

previously known as Level 5 fines

• Applies to all statutory and common law offences in place before 12 March 2015

• New Criminal Practice Directions to deal with allocation etc. by an “authorised DJ”

Corporate Manslaughter and Corporate Homicide Act 2007 (2)

• Prosecution must prove the way in which activities managed or organised:– Caused a person’s death;– Amounts to a gross breach of a relevant duty of care

owed to the deceased; and– Senior management’s role in the breach was a

substantial element in the breach• Penalties

– unlimited fine (multi-million); – remedial order; and / or – publicity order

Fire Enforcement Trends

• London Fire Brigade v Regional Fire Authorities

• Level of Enforcement – still lacks consistency?

• Primary Authority Scheme

• Challenging Enforcement Notices

New Sentencing Guidelines for H&S Sentencing Council consultation on

draft guidelines for health and safety offences, corporate manslaughter, food safety and hygiene offences

Consultation began on 13 November 2014 and ended on 18 February 2015

Definitive guidelines published in November 2015, with implementation on 1 Feb 2016

New Sentencing Guidelines

Firstly, determine Culpability – 4 Categories:

Very high – deliberate or flagrant breach High “fell far short of the appropriate standard”,

“evidence of serious systemic failings …” Medium – fell short, but between High and Low

categories Low – “did not fall far short of the appropriate

standard”, “evidence that failings were minor and not systemic”

New Sentencing Guidelines

Then determine the Harm – 4 Categories based on seriousness and likelihood:

New Sentencing Guidelines

Then decide the Organisation Category based on TURNOVER: Very large organisations: “turnover … greatly

exceeds £50m” Large (>£50m t/o) Medium (£10-£50m t/o) Small (£2-£10m t/o) Micro (<£2m t/o)

What may the fines look like?

EXAMPLE: Large Company (£50million + turnover): Very High Culpability / Harm =

Starting point £4m (range £2.6m to £10m)

Low Culpability / Harm =

Starting point £130K (range £50k to £350K)

Corporate Manslaughter =

Starting point £7.5m (range £4.8m to £20m)

NB – there are also sentencing guidelines for individuals with custody thresholds set at “neglect” (e.g.very high culpability / harm = Starting point 18 mths custody)

What does this mean?

• Fines for large/very large companies are going to be substantially increased

• Establishing whether culpability was “low” will be very important in setting fines

• Even more important to show existing procedures are in place/what does industry do?

• Very large companies may fall outside the ranges in the Guidelines and “all bets are off”

Not strictly applicable to Fire Safety legislation yet, but...........

Fire – Significant Fines

R v Shell International Ltd (2009)• Fine of £300k + £45k costs• No death / injuries and no causation• Guilty plea - Failure to review risk assessment and failure to

maintain premises and equipment (originally 13 charges)

R v New Look Retailers Limited (2010)• Court of Appeal – June 2010• Upheld fine of £400k – severe but not disproportionate• No death/injuries• No causation but failed to manage risks

Fire – Risk of individual prosecution

Craig Stonelake - March 2015

• Private fire risk assessor found guilty of failing to provide an adequate risk assessment for large restaurant

• G plea in the Magistrates’ Court - fines and costs of £7,383.• Risk assessment was unsuitable – it ignored the inadequate

means of escape, lack of suitable fire doors, inadequate fire alarm system, and firefighting equipment

• He serviced the firefighting equipment and was not trained to do so

Fire - Article 5 (3) duty holders

Christopher Morris - January 2011• Prosecution of fire alarm engineer (first of its kind)• Former fire fighter failed to maintain fire alarm system in care home

and failed to inform home owners of systems deficiencies• £5,000 fine plus costs of £6,000

O’Rourke – September 2011• 2 offences of failing to make suitable and sufficient risk assessment• O’Rourke purported to carry out fire risk assessments on both

properties – “cut and paste job”• G plea – 8 months imprisonment on each count (concurrent)• Owner also sentenced to 8 months imprisonment

Lakanal House – 2013 inquest

• Lakanal House – July 2009 fire resulted in death of 6 residents

• Narrative Verdict / issues (March 2013):– Control operators failed to listen– Response to initial fire– Residents unaware of escape routes– Inadequate Fire Risk Assessment

• No manslaughter charges for Southwark Council for the deaths

Landlord Jay Liptrot jailed for fire deaths – November 2015• Neighbour dispute in Prestatyn – Melanie Smith set

pushchair alight following row with upstairs neighbour• Jailed for murdering Lee-Anna Shiers, boyfriend, son,

niece and nephew – 5 life sentences imposed (min 30 yrs)• Landlord – firefighter with 15 years experience, made

brave efforts to save the occupants• Failed to put reasonable “basic safety precautions” in place• Charged with manslaughter, but admitted one count of

failing to take general fire precautions (Art 8 RRO 2005), • 15 months imprisonment imposed

Top tips to reduce exposure to liability (1)Responding to Incidents

• Is there a duty to investigate accidents?

• Privilege – reports do not have to be disclosed to Police, Fire Authority, Coroner or PI claimants

• Understanding powers of Fire Authority (PACE interviews / Issuing of Notices)

Top tips to reduce exposure to liability (2)• Competent persons – accreditation

– No need for specific qualifications– Must understand relevant fire safety legislation– Appropriate training and experience

• Guide on choosing a risk assessor

• IoD Guidance on safety leadership

ANY QUESTIONS?

Kizzy Augustin, Senior Associate, Pinsent Masons LLP

• kizzy.augustin@pinsentmasons.com

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